Courts


Well, all of you sniggerers who like to put down Arcata for meddling in distant world affairs when it ought to be attending to its own potholes, here’s your comeuppance: Our favorite anklebiter city may have just helped shape future world energy development.

Two settlement agreements were filed last Friday in the U.S. District Court for the Northern District of California. In them, the Export-Import Bank and the Overseas Private Investment Corporation — U.S. government-run agencies — agreed to evaluate the impacts on global warming of the fossil fuel projects they finance around the world, often in places with no environmental regulations. They’ve also agreed to each put $250 million into overseas renewable energy projects. In addition, Export-Import Bank agreed to consider carbon dioxide emissions from its projects, and to create a carbon policy. OPIC committed to reducing greenhouse gas emissions from overseas projects it funds by 20 percent over the next 10 years.

In August 2002, Friends of the Earth, Greenpeace and the City of Boulder, Colo., sued these two behemoth federal financiers and insurers, accusing them of spending more than $32 million between 1990 and 2003 on major fossil fuel projects without analyzing their impacts on climate change under the National Environmental Policy Act. Arcata joined the lawsuit in 2004; Santa Monica and Oakland also jumped on.

“Typically when a U.S. agency does a large project that has potential environmental impacts, they run it through NEPA,” said Mark Andre, Director of Environmental Services for the City of Arcata, last Friday. “Well, overseas projects aren’t subject to that.”

The projects named in the lawsuit, said the litigants, had cumulatively contributed to the equivalent of “nearly eight percent of the world’s annual carbon dioxide emissions, or nearly one third of annual U.S. emissions in 2003,” said a news release from the City of Arcata.

Over the years that the suit malingered, the Bush administration insisted the agencies remain exempt from NEPA, said Arcata Mayor Mark Wheetley. This settlement, however, marks a change in direction. Wheetley said it’s been incremental; the world “mindthink” was bound to catch up to Arcata’s progressive ways, he said.

“When we filed the suit, we were back in the dark, dark, dark Bush days,” Wheetley said. “We weren’t even acknowledging global warming yet. And now we’re having a national dialog about it. It’s been coming — you know, Al Gore’s efforts, the increase in knowledge and awareness through An Inconvenient Truth, that was just a huge education outreach. And now, this whole issue has percolated to the top.”

Some major precedents came out of this case, says Nancy Diamond, the City of Arcata’s attorney in the matter. In 2005, a federal judge granted legal standing — the ability to sue, in this case under NEPA — to cities claiming injuries from global climate change. That, in turn, set the stage for a big Supreme Court decision in another case, Mass v. EPA: that greenhouse gases are subject to Clean Air Act regulations.

“Global warming in and of itself wasn’t a recognize theory of harm, when we brought the lawsuit,” said Diamond. “So, it was the first case that established standing for global climate change.”

It was Andre who helped establish Arcata’s claim to injury. In a 2004 court declaration he described how, based on available records and science, since the late 1800s the temperature in the Arcata area had risen, annual rainfall had decreased, and sea level along the California coast had risen. He cited projections of more sea level rise.

“A 12-inch rise in sea level would mean that the current 100-year high tide peak would become instead a 10-year high, thus a rare event would become common,” Andre wrote.

This could mean inundation of Arcata’s 225-acre marsh — a wildlife sanctuary and wastewater treatment facility — and the adjacentl treatment plant where chlorine is used. About 550 acres of low-lying pastures owned by the city would become saltwater messes. Diminished snowpack would reduce Arcata’s drinking water supply. There would be unpredictable floods. And a rise in ocean temperatures would threaten marine life, and thus the commercial and recreational fisheries.

Andre said the settlement is a good one. And Diamond said settling was better than going to trial. Now, the two agencies must consider the impacts on climate change of any projects they fund from here on out, instead of just the projects named in the lawsuit in 2002.

The Eureka-based construction firm Mercer Fraser, well known for its work on roads and highways locally and around the north state, last week agreed to pay $1.3 million to settle a lawsuit charging that the company defrauded the federal government while bidding on several highway projects dating back to at least 2005. The suit, which was filed in Sacramento federal court in 2007, charged that the company falsely posed as a small business during the bidding process, thus giving it an unfair advantage over rival bidders.

In a press release announcing the settlement, Acting United States Attorney Lawrence G. Brown noted that Mercer Fraser denied any wrongdoing in the matter. And on Tuesday, Vice President Justin Zabel confirmed that the company believed that it had acted properly when it applied for small business status with the federal government. The decision to settle the case, Zabel said, was purely a matter of putting the suit in the past.

“We had to make a business decision — do we try to fight it and pay millions and millions of dollars?” he said. “Eventually we decided that we should pay it and move on.”

The lawsuit, which was originally filed by a private individual named Mark Mann, charged that Mercer Fraser deceived the government in two ways: By not disclosing its relationship with the Contri Construction Company of Reno, Nev. and by identifying itself as primarily a gravel and sand supplier rather than a heavy construction firm. (The company operates several gravel processing sites in the county.) The complaint charged that the two factors, taken together, allowed Mercer Fraser to illegally qualify for standing under the federal government’s HUBZone Empowerment Contracting program, which was set up to give preferential treatment to small businesses from “historically underutilized business zones.” The federal government eventually endorsed and joined Mann’s suit.

But Zabel said that Mercer Fraser completely disclosed its business relationship with the much larger Contri Construction Company, which owns a large stake in the Eureka firm, and that personnel from the HUBZone program signed off at the time the company applied. He said that Mercer Fraser was contacted by the program after the company filled out its original application online, asking for details on Contri Construction, and that Mercer fully complied with the request.

“The government just said, ‘No, this looks good, you’re fine, congratulations,’” Zabel said Tuesday. As for the Mercer Fraser’s designation as primarily a sand and gravel operation, Zabel said that it was the HUBZone computer system that hung that on them; the computer application required the company to list all its business activities, he said, and it decided to spit back sand and gravel as its primary designation.

Mann, the original complainant, is only identified in the lawsuit as “an individual who has worked for a competitor and supplier of the defendant corporations [Mercer Fraser and Contri Construction].” As the initiator of the matter, he is entitled to receive 15 percent or more of the proceeds from the settlement. The Journal was unable to locate Mann, and calls to his attorney were not returned by press time.

Mercer Fraser has done over $30 million worth of business with the U.S. Federal Highway Administration since 2000. Just over half of that total comes from single 2006 contract for work to reconstruct the Oroville-Quincy Highway in Butte and Plumas counties. In addition, the company does frequent work for the County of Humboldt and other local governmental entities.

The last time the company made news, a couple of months ago, it was for winning a legal case: Mercer Fraser was one of two companies that sued the county over Measure T, the 2006 citizens’ initiative that sought to ban “non-local” corporations from contributing to local political campaigns. After the companies won an initial, pre-trial decision in that case, county government agreed to drop enforcement of the measure.

gay_marriage

March 5. That’s the day Prop 8 will be challenged in court, according to this story in today’s Sacramento Bee.  The controversial state ban on gay marraige, approved by a slim margin on Nov. 4, has been legally challenged by three parties as unconstitutional. Seating’s limited in the San Francisco courtroom, so you may want to check with your cable provider to see if you get the California Channel:

To increase public access, the court will allow the California Channel, a public affairs cable network, to provide a live TV broadcast of the session.

The court must issue a decision within 90 days of the start-date. Stay tuned.

viola1

The current edition of the Ferndale Enterprise takes note of the story from last week, “Hobart’s Children,” and takes issue with what is deemed misinformation regarding the painting above by Viola McBride.

The tangled story of the disposition of Hobart’s estate included a brief description of the tours of Hobart’s Galleries led by the Kinetic Rutabaga Queens the weekend after the trustee sale:

Throughout they told stories about art pieces that factored into the artist’s colorful history, among them a nude self-portrait of Viola McBride, the former owner of the building who essentially brought Hobart to town.
The following weekend, when the Queens returned to lead more tours, they found the gallery basically emptied, the paintings and sculptures gone. The McBride painting had been removed, along with paintings and sculptures from Hobart’s living quarters.

Some in Ferndale, including members of the McBride family, questioned whether Viola’s painting was in fact a self-portrait. The description came from Kinetic Rutabaga Queen Shaye Harty who, while leading one of those tours of Hobart’s Galleries, said,

One of the first things l like to point out is this self-portrait here by Viola Russ McBride. You can see she did it in 1977. I don’t know if you know the history, but she was the one who convinced Hobart to bring his gallery from Eureka to Ferndale. Together they did a lot of the restoration on Main Street. Some of the old ladies in town weren’t so happy that there were nude portraits in Hobart’s gallery, Viola, always a supporter of the arts, wasn’t going to have that. So she painted this picture of herself nude and had Hobart put it up right here so people walking by could see a self-portrait of Viola saying, ‘Hey old ladies, loosen up a bit.’

In retrospect I suppose it would have been better not to simply accept what she said as fact. From a quick Google search I learned that Viola Russ McBride died in October 1996 at the age of 90. (This came from a UC Davis Magazine obit that also noted, “Ms. McBride was one of the first women students at UC Davis and went on to break other gender barriers as the first woman president of the Humboldt County Cattlemen’s Association.”)

In 1977, Viola was 71 years old. So, it would indeed seem unlikely that the painting is a self-portrait. How might Shaye have made the mistake? Underneath the painting is a hand-written label that says, “Viola Russ McBride – Presented to Hobart Brown by Andy and JoAnn McBride,” and the painting is signed V. R. McBride. Was the label merely identifying the artist?

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Shaye tells us that Hobart himself told her it was a painting of Viola. She also suggests that the painting might be Viola’s memory of what she looked like when she was younger. “I guess we’ll never know,” she concluded.

As  noted in “Hobart’s Children,”  the McBride painting was among the items that disappeared from the building in the period between the property sale and the court hearing regarding Beltz v. Brown. The nude was reportedly given to the McBride family under the assumption that the painting was merely loaned to Hobart.  A press release received today from Justin Brown and the family trust asks anyone who was given paintings or other items from the gallery to contact trust representatives:

The Hobart Brown Trust would like to ask the public to help recover trust property. In the last year and with the increased activity since January 8th 2009, property has been sold and/or given away from Hobart Brown’s business and home located at 393 Main Street in Ferndale California. Some of this property includes sculptures and other works by Hobart Brown along with pieces by many other artists.  Some but not all items were clearly marked on the back “Property of Hobart Brown,” “Hobart Galleries,” “Justin Hobart Brown” or “Maggie Brown McDaniel.” In addition to the artwork, family photo albums, scrapbooks and family heirlooms are missing, and we are trying to recover these personal items. We apologize if anyone was misled to believe these personal items were available to the public. If you have anything in your possession or know someone who has possession of such items from Hobart Galleries or Hobart’s home; if you know where any of our family’s legacy may be, please contact the trust at: hobartgalleries@msn.com or at (707) 444-3395. We would also like to thank those who have already stepped forward and spoke up in order to return items to the family.

Colombian gamecocks

Colombian gamecocks

Local landowner Ray Christie was arraigned at the county courthouse today on six misdemeanor charges stemming from last month’s raid on his McKinleyville farm, where animal control officers found heaps of evidence suggesting a massive gamecock breeding operation.

Christie, who looks like this –

brawny– appeared in street clothes (blue flannel shirt, Carhartt jeans, workboots) along with his lawyer. They entered not-guilty pleas, and a pre-trial date was set for Feb. 24 at 2 p.m.  Christie, looking relaxed, promptly left the courtroom after the trial date was set.

No one reached at the DA’s office Friday afternoon could say why Christie’s being charged with just six misdemeanors despite the nearly 1,400 roosters, 72 knives and 13 pairs of gaffs

A cockfighting "gaff" or "spur"

A cockfighting "gaff" or "spur"

seized from his property last month, according to the T-S.

kenstarr v.  jerry-brown-prop-8

You may have noticed that plenty of folks have not yet taken down their “Yes on 8″ or “No on 8″ yard signs or peeled off their “8 is Hate” bumper stickers.  That’s cuz this thing ain’t over.  This slide show was the Courage Campaign’s reaction to Ken Starr’s from-the-top-rope flying leap into the fight. The former Lewinsky crusader recently became lead counsel in the effort to invalidate the marriages of the more than 18,000 same-sex couples who got legally hitched before Nov. 4.

And in the other corner… California Attorney General Jerry Brown, who made a surprising side-switch last week after examining state precedent and concluding that, “the amendment process cannot be used to extinguish fundamental constitutional rights without compelling justification.” He’s now asking the state Supreme Court to invalidate the measure.

It’s the measure vs. the marriages in an all-out battle for validity. Think they’ll put it on pay-per-view?

Prop 8 protest in Eureka - photo by Kim Sallaway

Prop 8 protest in Eureka - photo by Kim Sallaway

The Sacramento Bee reports that the California Supreme Court will consider issues brought by those opposed to Proposition 8.

They’ll be looking at three things:

Whether Prop 8 is a revision of the California Constitution when it should have been an amendment. If it’s a revision, it’s invalid.

Does it violate the separation-of-powers doctrine?

And last, if the Prop passes muster and stands, what about the marriages that took place this year? Are they now null and void or do they stand?

The plan is to get on it ASAP. Oral argument may begin as soon as March 2009. In the meantime, Prop 8 is in effect, marriage is strictly man/woman, so no more same-sex marriages for now.

More details on the case can be found on the Court’s site.

Not all Prop 8 supporters are happy that the court is taking this up (as you will see if you read the Bee story or see below), but you would not know that from this press release from ProtectMarriage.com:

Sacramento, CA – The official proponents of Proposition 8 and ProtectMarriage.com – Yes on 8, the campaign committee responsible for its enactment by voters today said it is “profoundly gratified” that the California Supreme Court granted all their requests by agreeing to accept original jurisdiction of three cases challenging the measure’s validity,  granted their request to intervene in the cases as Real Parties in Interest, denied the request of others to delay implementation of Proposition 8, and refused to allow outside groups to directly participate in the litigation.

“This is a great day for the rule of law and the voters of California,” said ProtectMarriage.com General Counsel Andy Pugno. “This order means that voters will get their day in court and ensures that voters will have a vigorous defense of Proposition 8 before the California Supreme Court. We are profoundly gratified with the Court’s order and are confident that Proposition 8 will be upheld.”
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We’re down here in Rio Dell at the Blogger’s Picnic, and since the city is famously wireless, we’ve managed to find a hot spot for live blogging.

Heraldo showed up in full chef regalia and has fired up his very cool grill to cook up some gourmet dogs:

Heraldos hemi-powered grill

Heraldo's hemi-powered grill

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Petrolia resident David Simpson has been down in Texas attending the Palco bankruptcy hearings. This week he started a Community Forest Team blog titled, Dispatches from David. As someone involved in the legal morass, he has an axe to grind — that said, his first hand accounts are insightful and well worth reading. Take this excerpt from the end of his first post: “Lawyers Gala

A note on this festival of lawyers- Over 90 people packed in to the relatively small courtroom at peak attendance this morning. There were two security people and a smattering of PL executives, forester Bill Kleiner from Humboldt and I. That’s pretty much it for the non-solicitor presence. There were well over 40 lawyers in the inner court itself and a least another 10 or maybe even 20 more outside.

That makes close to 60 lawyers. Some represented PL, some the note holders or MRC or Marathon—all on the meter, all being compensated at an average rate of maybe $500 an hour. If they clocked in six hours just for their courtroom efforts, it could add up to over $300,000 for the one day in a multi-day event. And it all comes out of the trees. Our trees! The lawyers in a bankruptcy, one should remember, get paid first no matter who wins or losses or what happens to the land or our community.

The Houston Chronicle‘s Loren Steffy dries the tears in his eyes long enough to again sing the tragic tale of one of Houston’s finest, Charles Hurwitz. The occasion is Hurwitz’s recent losses — or are they really wins? in a couple of court cases, including our own Pacific Lumber bankruptcy case and the reversal of his recent monster lawsuit against the FDIC.

Steffy’s column is scored for strings, with 100 detuned violas scraping out the sad, sad story of a great man brought to heel by a society too base to appreciate his accomplishment:

Charles Hurwitz called to make sure I knew it was a victory.

He was talking about last week’s appeals court ruling that wiped out at least $57 million of the $72 million in sanctions a lower court said he could collect from the government.

“That’s a win all the way around,” he said.

And on and on — Hurwitz with his head held high, facing the coming death of his Maxxam Corp. with steadfast dignity. I should have told you, Hurwitz — this world was never made for one as beautiful as you.

Steffy’s previous work includes a laff-a-minute blog post entitled “It Seems Like Charles Hurwitz Just Can’t Catch A Break,” which enjoyed a brief moment of fame here in Humboldt County.

The best show on TV — ever — ends its five-year run tonight. I’m not going to go into detail on why you should watch The Wire, let’s just say it’s offered us a glimpse of the dysfunctional state of the inner-city we haven’t seen elsewhere and are not likely to see again. In particular it’s showed us what the so-called War on Drugs is doing to society.

This week’s Time magazine includes an essay by the creators of the series: Ed Burns, David Simon and George Pelecanos.

We write a television show. Measured against more thoughtful and meaningful occupations, this is not the best seat from which to argue public policy or social justice. Still, those viewers who followed The Wire — our HBO drama that tried to portray all sides of inner-city collapse, including the drug war, with as much detail and as little judgment as we could muster — tell us they’ve invested in the fates of our characters. They worry or grieve for Bubbles, Bodie or Wallace, certain that these characters are fictional yet knowing they are rooted in the reality of the other America, the one rarely acknowledged by anything so overt as a TV drama.
These viewers, admittedly a small shard of the TV universe, deluge us with one question: What can we do? If there are two Americas — separate and unequal — and if the drug war has helped produce a psychic chasm between them, how can well-meaning, well-intentioned people begin to bridge those worlds?

The writers admit that their show did not really answer that question. They point to stats you’ve read about recently: The Pew Center report that shows that a full one percent of Americans are incarcerated, the highest rate in the world. Even if you haven’t seen the report, you can probably guess that a disproportionate number of those prisoners are black. And yes, drug crimes play a major role in those numbers.
Getting back to that question, what can we do? The Wire writers offer a suggestion, something known historically as jury nullification.

If asked to serve on a jury deliberating a violation of state or federal drug laws, we will vote to acquit, regardless of the evidence presented. Save for a prosecution in which acts of violence or intended violence are alleged, we will — to borrow Justice Harry Blackmun’s manifesto against the death penalty — no longer tinker with the machinery of the drug war. No longer can we collaborate with a government that uses nonviolent drug offenses to fill prisons with its poorest, most damaged and most desperate citizens.

They’re not saying someone like Marlo should go free, or even young Michael (and at this point I don’t know what fate awaits either of them). But if I was on a jury where Bubbles was on trial for his lifestyle, I think I’d be willing to cut him loose. What about you?

Seems like I’ve been saying this a lot lately, but I’ll say it again: Help me out. Lawyers especially, this time.

Look at the last two items on the list, here. Is District Attorney Paul Gallegos trying to take his Pacific Lumber lawsuit to the California Supreme Court?

Interesting, too, to note that the Appellate Court apparently altered its final ruling in the case at the request of the state Attorney General’s Office. And over Palco’s objections. Didn’t hear any of this mentioned in bankruptcy court the other day.

Judge Richard S. Schmidt only alluded to it briefly in Thursday’s hearing, but a new player has entered the Pacific Lumber bankruptcy proceedings. This party brings an audacious, out-of-the-box plan for the future of the 150-year-old Humboldt County timber company to the table.

Rio Dell resident and Humboldt County blogospherian Steve Lewis has officially entered his Heartlands Project proposal into the Pacific Lumber bankruptcy file. (It’s docket number 2255, and a PDF of it can be downloaded here.)

The incredible scope of the plan makes it difficult to summarize. Let’s just say that if even if you’ve read all 2,304 blog comments Lewis has posted about the Heartlands Project here and there, you still only know maybe 10 percent of the proposal.

You have to read the whole thing to get real sense of this remarkably ambitious plan, but here are some of the lesser-known highlights:

  • International Satellite Lottery System: High-tech, smartphone-based lottery. “This lottery system requires no ticket outlets … making this new vastly simpler Satellite-Tribal Land Processing Center System much less expensive to set up and maintain.”
  • CorpoLotto: Another lottery that corporations would enter, with super-mega-jackpots.
  • Heartlands Research and Development: Sustainability think-tank made up of Humboldt State, College of the Redwoods, “Chinese” and “local talented people.”
  • Cardboard: A major play into the lucrative cardboard market, including cardboard surfboards and cardboard automobiles.
  • Palco Emporium: Locally owned, tribally operated big box store on the site of the old Fortuna Mill. “In a ‘tribal-communitarian’ partnership with either Bear River or Table Bluff Wiyot Tribes, Palco would use tribal sovereignty rights and Chinese capital to compete with volume-discount stores like Wal-Mart.”
  • Palcovilles: Planned-unit communitarian developments. A hundred Scotias bloom.
  • Scotia Studios: Scotia Mill A would become a sound stage. The company would produce Steve Lewis’ unproduced film scripts.
  • Palco Toys: Would make toys based on Steve Lewis’ designs.
  • Palco Publishing Inc.: Would publish local books, starting with Steve Lewis’ four unpublished manuscripts.
  • Palco-Soft: Educational software.

The Heartlands prospectus also includes a brief synopsis of the various nefarious players who have stymied this miraculous proposal from bearing fruit hitherto. For instance, Lewis writes that he was deep in months of discussion with Evergreen Pulp about possible partnership opportunities back in 2005, and he believes they were on the verge of reaching accord. Alas, along came “environmentalists” to protest the mill’s air quality emissions, yet again scuttling the Heartlands Project’s chances.

Early in Thursday’s bankruptcy court hearings, Judge Schmidt and the attorneys in the case ran down all the items that would be dealt with on that day’s calendar. When the lawyers got to the end of their lists, Schmidt said, “and there’s that submission from the Indian Tribe.” Everyone concurred. But that was the last anything was said about it.

scotia.jpg

Sharp-eyed Blogthing reader “Lou” — who wins instant promotion to our MVP Reader Team — noticed yesterday that nine commercial properties in downtown Scotia have been listed for sale on the Humboldt County Multiple Listing Service. (No direct links, unfortunately. Search for Scotia properties.) The buildings in question include the Pacific Lumber HQ, the town museum, the commercial center housing Hoby’s Market and other small businesses, the Post Office and the Winema Theatre, among others. They’re listed at a combined total of $11.5 million.

How can this be, given that the company is in bankruptcy and the properties in question have all been borrowed against? After listening in on the bankruptcy court conference call this morning (more about which anon), our first thought was that the sale of the property was some sort of hare-brained quick money scheme. Pacific Lumber is out of cash. They’ve got 24 million board feet of timber in the year, but no one to sell it to. They’ve got a total of $1.5 million in the bank. They’re going to be seeking additional loans just to get through the next five weeks.

So, are they sneaking some properties out the back door just to stay afloat? Not at all, said Pacific Lumber spokesperson Heather Muller today. In fact, she said, the sale of the properties has been underway for some time.

“My understanding is that we filed a Town Plan with the court approximately eight months ago that anticipated the sale of commercial buildings in Scotia,” she said. “A few have recently have appeared on the MLS due only to the efforts of the agents engaged to sell them.”

Muller added that any sale of property would have to be approved by the bankruptcy court, and that nearly all proceeds would go to the creditor who held liens against it — in this case, Marathon Capital Group.

Then why proceed with the sale at all? Muller said that it was her understanding that the sale was part of the company’s fiduciary duty to Marathon its estate. The company owes Marathon money; it’s trying to pay it. A bit odd considering that Marathon has proposed its own plan for the future of the company, which would presumably include the properties in question. But as of right now, everything appears to be above board.

The Scotia commercial properties were listed through Pacific Partners/Coldwell Banker. Listing agent Dave Wells didn’t return a call seeking comment.

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Shasta County Superior Court Commissioner Gary Gibson has rejected a request from a reporter at the Record Searchlight in Redding seeking a restraining order against a former friend turned blogging nemesis.

Beth Doolittle-Norby’s blog, “No Phat Pink Chicks,” pokes fun at journalist Christy Lochrie’s reporting, looks and personality, according to an AP report, which is why Lochrie wanted it to be taken down.

The court commissioner said that Doolittle-Norby’s blog was written at roughly a sixth-grade level but was legal nevertheless.

He told Lochrie, “I think we can’t avoid that there’s a big, fat First Amendment staring you in the face,” he told her.

Nonetheless, Doolittle-Norby has taken her blog underground. When you try to visit www.nophatpinkchicks.blogspot.com, you get this message:nophatpinkchicks.jpg

Lochrie’s blog is still up and running but she must have been distracted by the trial: Her last blog entry was January, 25.

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